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Facebook 'Likes' Aren't Protected Speech 214

Posted by Soulskill
from the don't-like-a-fire-in-a-crowded-theater dept.
An anonymous reader writes "In what may win awards for the silliest-sounding lawsuit of the year, a case about whether Facebook 'likes' qualify for free speech protection under the First Amendment has ended in a decisive 'no.' In the run-up to an election for Sheriff, some of the incumbent's employees made their support for the challenger known by 'liking' his page on Facebook. After the incumbent won re-election, the employees were terminated, supposedly because of budget concerns. The employees had taken a few other actions as well — bumper stickers and cookouts — but they couldn't prove the Sheriff was aware of them. The judge thus ruled that 'merely "liking" a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.'"
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Facebook 'Likes' Aren't Protected Speech

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  • by theedgeofoblivious (2474916) on Saturday April 28, 2012 @07:22PM (#39834125)

    On what planet is money a form of speech but indicating your support for something not?

    • by mykos (1627575) on Saturday April 28, 2012 @07:40PM (#39834223)
      Planet AMURICA.

      Corporations are people too, so suck it, you godless socialist atheist communist fascist Islamist!

      • by stms (1132653)

        'merica Fuck Yeah. Does anyone know a place I can give this decision a like?

      • by Diamon (13013)

        "Too" implies that people are still considered people, I'm not sure that is an assumption that can safely be made.Perhaps it's time for us all start incorporating to maintain our rights.

        • Re: (Score:2, Offtopic)

          by PopeRatzo (965947)

          "Too" implies that people are still considered people, I'm not sure that is an assumption that can safely be made.

          It depends on your bank balance, your gender, the color of your skin and your sexual identity.

          So, by my calculations, that leaves a couple of hundred people who are people, and they're getting pretty old, so...

    • by phantomfive (622387) on Saturday April 28, 2012 @08:06PM (#39834335) Journal
      In Eastern Virginia, apparently. This is in a district court, which if I am not mistaken, is the lowest federal court. In other words, this decision has no influence outside this case.
    • by mosb1000 (710161) <mosb1000@mac.com> on Saturday April 28, 2012 @08:07PM (#39834341)

      One which will not be upheld if it makes it to the supreme court.

    • by bryanp (160522) on Sunday April 29, 2012 @07:41AM (#39836811)

      Nice oversimplifaction. Money is not and has never been declared to be free speech in the US. Spending your money to support people who advocate ideas you believe in has been declared a form of protected expression of your political ideas, broadly lumped under the freedom of speech.

  • Not surprising (Score:4, Insightful)

    by betterunixthanunix (980855) on Saturday April 28, 2012 @07:27PM (#39834157)
    Considering that the federal government has caused researchers to lose their jobs over entire books their have published, it is hardly surprising that such a minute form of expression would not be considered "protected."
    • by rthille (8526)

      Citation please?

      • Re:Not surprising (Score:4, Informative)

        by betterunixthanunix (980855) on Saturday April 28, 2012 @08:24PM (#39834413)
        How about Alexander Shulgin, whose lab was raided and whose research license was revoked after he published a book on the drugs he had researched? He has continued to work, but is basically barred from performing any analysis on illegal drugs, which at this point includes whole families of drugs that he described in his books.
        • Confessing to a crime(whether the crime is STUPIDLY classified as such is another issue entirely) is easily grounds for revocation of a research license.

        • by nedlohs (1335013)

          Over two years after he published said book. His license was revoked because he violated the terms of it.

          Sure the two events were most likely related, but it he didn't lose a job for the book he lost it for possession of illicit drugs that he didn't create in his lab under his license.

          • No, his lab was raided by the DEA because of the book; they were looking for anything they could use against him. Ward Churchill was not fired for his 9/11 article either, he was fired for academic misconduct -- which the University of Colorado started looking for after the article was brought to their attention. People cannot be punished for what they say, but if you look hard enough you can always find a punishable offense.
  • by Shavano (2541114) on Saturday April 28, 2012 @07:32PM (#39834187)

    You can be fired for your Facebook likes, but since they don't count as free speech theoretically this means the government could regulate them.

    It's an unfortunate decision that's likely to become a precedent for future cases where your free speech will be further restricted.

    • It's an unfortunate decision that's likely to become a precedent for future cases where your free speech will be further restricted.

      Probably not, it was a lowly US district court. It wasn't like a supreme court where the decision are followed by many other courts afterwards.

      • by Shavano (2541114)

        Any court decision can be used as precedent by another court, except on appeal.

        If this case should be appealed and the judge's decision is upheld, then it would become a really big deal.

    • but wait... no one would dispute that calling someone an asshole/idiot is free speech, correct? So if I call my boss an assholeidiot behind his back, and he finds out and then fires me, is this a travesty against human rights and freedom?
  • Burden of proof (Score:5, Informative)

    by Hentes (2461350) on Saturday April 28, 2012 @07:33PM (#39834191)

    I don't know about America but here in Europe this is one of the rare cases when the burden of proof is on the accused. The employer has to prove that the justification he gave when firing those people was valid. In a case like this, he would have to prove that there wasn't enough money. If he fails to do that, for example because he hired new people to fill the empty positions, then he loses.

    The problem here is that even if 'likes' were considered free speech, it would be almost impossible to prove that they were fired because of that.

    • Re:Burden of proof (Score:4, Insightful)

      by sycomonkey (666153) on Saturday April 28, 2012 @07:57PM (#39834295) Homepage
      There are disadvantages to that. I'm specifically thinking of the flexibility of the job market: In the course of being edged out by competitors or a changing market, an employer might hold on to their workforce longer than they should out of fear of being sued for wrongful dismissal. That makes the entire economy less capable of adjusting to disruptive technologies and global market realities. That being said, in the US we tend to avoid this to kind of an absurd level. Most states are right-to-work, where you can be fired (or quit) for no reason whatsoever. And even in states were that is not the case, it is often practically impossible to sue for wrongful dismissal except in particularly egregiousness cases like discrimination (and you can still get sued for that in RtW states anyway).
      • Re:Burden of proof (Score:5, Insightful)

        by ultranova (717540) on Saturday April 28, 2012 @08:22PM (#39834393)

        There are disadvantages to that. I'm specifically thinking of the flexibility of the job market: In the course of being edged out by competitors or a changing market, an employer might hold on to their workforce longer than they should out of fear of being sued for wrongful dismissal. That makes the entire economy less capable of adjusting to disruptive technologies and global market realities.

        That's a feature, not a bug. Entrepreneurs are precisely the people who should bear the risks of the market, since they also get the profits. This way employees have more job security and employers have a motivation to train their employees rather than fire them and hire new ones. Both of these help stabilize the economy.

        Also, there is no such thing as "market reality". The "market" is a purely social construct and as such can be altered at will. Just look at the financial industry if you don't believe me: trillions of dollars can vanish overnight, yet nothing in the physical reality changes.

        • By "market reality" I meant things such as the fact that China exists, or that Widgets cost 3x as much to make in country A than in country B. Facts that affect markets.
          • Re: (Score:3, Insightful)

            by ultranova (717540)

            By "market reality" I meant things such as the fact that China exists, or that Widgets cost 3x as much to make in country A than in country B.

            Do the Widgets really cost 1/3rd to make in country B? Or does country B simply lack enviromental and worker safety laws, thus allowing the manufacturer to shift parts of the cost to the rest of the society? Perhaps it even lacks minimum wage laws and forbids unions, thus giving the manufacturer access to slave labour, again shifting costs to other people.

            It would in

      • Re:Burden of proof (Score:5, Insightful)

        by happyhamster (134378) on Saturday April 28, 2012 @08:31PM (#39834475)

        These are not "disadvantages", but the way decent society should work. The utterly unethical, immoral treatment of workers in "right-to-throw-you-out-on-a-whim" states as warm spare parts has to stop. It's not producing a healthy society I'd like my kids to grow up in. Economy is important, but it should not take precedence over a healthy society where most workers have stable careers and can afford to have families and raise children in economic security.

        • by strack (1051390)
          its not like being able to fire employees on a whim is good for the economy anyway
    • by hairyfeet (841228)
      Question: Then how would you fire someone that sucks at their job? if i have 3 employees and two are lazy bastards and one a hard worker naturally i would want to fire the lazy ones and keep the good one, so how does that work over there?
  • It is the courtâ(TM)s conclusion that merely "liking" a Facebook page is insufficient speech to merit constitutional protection.

    This has got to be the silliest ruling I've heard in a while, it's at least as protected as putting your signature on a petition. You're endorsing a group or organization or person and what they stand for.

    • by mcavic (2007672)
      It doesn't make any sense to me at all. If "liking" a page is not speech, then it's meaningless, and therefore there's no issue. But if a "like" requires constitutional protection, then is IS speech, period.
    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Damn right. Since when is volume or weight a deciding factor for First Amendment protection?

      In my understanding, ALL speech is assumed to be free from censorship unless the government has a compelling case for limiting it, based on the overriding protection of others' safety or rights.

      That a judge can simply say, "nope, not substantial enough" is deeply disturbing.

  • by Compaqt (1758360) on Saturday April 28, 2012 @07:40PM (#39834219) Homepage

    First of all, are Sheriff's dept. employees granted the right to speak their opinion on a Sheriff's election without fear of losing their jobs?

    One could argue that they either should or shouldn't: Pro would be they should be civil servants not beholden to any one political officeholder or another. Con would be that if the Sheriff were elected on a platform, he would need his own people in there to implement his goal.

    Anyway, if Sheriff's employees do have a right to protected free speech in general, it boggles the mind as to how a Facebook like is not speech.

    I'm hoping the judge didn't say that a Facebook Like doesn't make use of the vocal chords, and hence, it's not "speech"?

  • If it can be proven that there is any pattern to the layoffs corresponding to the Sheriff's political opposition, he should be sued for the obvious civil rights violation.

    For a lot of money, and thrown in jail, too, if possible.
  • This is a decision from the US District Court of Eastern Virginia> there are two more apeal levels to go; US Court od Appeals and The Supreme Court of the United States. This is going to be appealed mainly due to the SCOTUS taking a very broad view of what is protected speech when political office is involved.

  • by gelfling (6534) on Saturday April 28, 2012 @08:01PM (#39834319) Homepage Journal

    Where do you get such crazy talk????

  • Fortunately not all states' laws are the same. New Hampshire [nhclog.org] has one of the strongest public employee freedom of expression statutes in the country.

  • by rossz (67331) <ogre@@@geekbiker...net> on Saturday April 28, 2012 @08:33PM (#39834483) Homepage Journal

    When questioned by reporters, the judge responded, "My cousin^H^H^H^H^H^H The sheriff is a hard working public servant who had to make some tough budget choices."

  • "...And what's more, being a miner, as soon as you're too old and tired and ill and sick and stupid to do your job properly, you 'ave to go. But the very opposite applies to judges – so all in all, I'd rather have been a judge than a miner..." -- Monty Python
    • by xmundt (415364)

      Greetings and Salutations;
      Not to be overly pedantic, but, the quote is actually NOT from Monty Python, alas. Rather it is part of a hugely funny skit by Peter Cook and Dudley Moore during their "Beyond the Fringe" days. I believe it was in the late 50s, although I am not sure of that. In any case here is a link, that, if you scroll down a bit, will get you the whole script. http://www.slaw.ca/2006/02/20/i-never-had-the-latin/

  • by Mysteryprize (2466438) on Saturday April 28, 2012 @08:43PM (#39834555)
    If you want to follow any discussion taking place on a facebook page, you usually have to "Like" it first. The word implies that you are supporting it, but you might just do it for the sake of curiosity, not to show how you genuinely feel about a subject.
  • ... because that tells me the judge just doesn't want to hear both sides in a real courtroom where we can see what the real case is about. Maybe he's on the take? No proof of that, but situations like that do get lots more summary judgments. It does sound suspicious, to me.

    • "Maybe he's on the take?"

      We can't be sure if he is on the take, but we can be certain he doesn't care if people like him.

    • Summary judgements have their place. What is the point of having a trial when one side cannot win, as a matter of law, regardless of the facts. I'm not endorsing this particular decision, but I support the appropriate use of summary judgements.
  • by jklovanc (1603149) on Saturday April 28, 2012 @09:39PM (#39834861)

    It is very simple to verify if the firings were due to budget choices; are the positions open or have other people been hired to fill them? If they have been filled thatn the reason for firing is not budget constraints and the Sheriff lied.

  • Period.

    Everyone is obsessed about whether a politician is a republican or a democrat. The D or R is king. If the D is in office and you're a democrat or vice versa then most voters will never vote for the opposing party to get rid of him.

    That's what you need to be willing to do on these matters.

    Make it clear to the politicians that this is an issue that will cost you elections. And they'll respect it.

    Short of that. They don't care.

  • And often deputy sheriffs serve at the pleasure of the Sheriff. As such, I believe that it is possible to fire them for any reason. Ultimately it depends on local regulations. Dick move, but politics is full of assholes who make dick moves.

    I don't think freedom of speech protects your job, it keeps you from getting jailed. Ozzie Guillen just got suspended for making the Castro comments. Granted, he still has a job, but he lost income.
    • But in this case, it appears that the plaintiffs were employees of the sheriff's office, not deputy sheriffs.

      The Sheriff could ultimately be responsible for the budget, so he "budgeted" them out.
  • Wait, what? (Score:4, Insightful)

    by Pfhorrest (545131) on Saturday April 28, 2012 @11:16PM (#39835219) Homepage Journal

    Something about this story sounds completely backward in every way, and maybe someone here can explain if it's the judge, the writer/editor, or just me who is sorely confused.

    First of all, insufficient to count as free speech? Have we really come so far from not only the letter but even the spirit of the First Amendment that only certain special classes of speech deserve protection from censorship, rather than (as the law literally states) all speech being completely protected, or at least (as courts have long interpreted) only certain egregiously dangerous speech, such as credible incitement to violence, deserving censorship? Is it really now no longer "is this dangerous enough to censor it?" but "is this acceptable enough to permit it?"

    Second of all, who is censoring who here? Someone got fired because their boss didn't like their opinion. In a private business (see next sentence before you jump on this) that's perfectly fine; freedom of association and all that, I don't have to work for people I don't like and I shouldn't have to let people I don't like work for me either; I've quit a job in part because of the owner's political expressions, why should the other way around be any different. In this case it's a public agency so I can see some stricter rules for hiring and firing being required, but nevertheless, in any case, this is a wrongful termination issue, not a free speech issue. This is not the government telling you "you are not allowed to say X"; this is an employer saying "we won't employ people who support Y". How the hell did this become an issue of free speech at all?

    • by artor3 (1344997)

      To answer your first point in three words: "free speech zones". Yes, we really have come that far.

    • by Alex Belits (437) *

      Second of all, who is censoring who here? Someone got fired because their boss didn't like their opinion. In a private business (see next sentence before you jump on this) that's perfectly fine; freedom of association and all that, I don't have to work for people I don't like and I shouldn't have to let people I don't like work for me either; I've quit a job in part because of the owner's political expressions, why should the other way around be any different.

      Actually, no. US labor laws suck donkey balls, but they don't suck donkey balls THAT much.

      • by Pfhorrest (545131)

        So say I make hand-crafted widgets out of my garage. I start doing enough business that I need to hire a secretary to handle the administrative minutia while I craft my widgets. But she won't stop going on about how great GWB was and how Obama is an evil socialist Islamist who wasn't even born here. I find that offensive and don't want to hear it in my shop. I can't get rid of her and find someone else I like working with better?

        • by Alex Belits (437) *

          If she "won't stop going on about" things even after asked to stop, it would be a valid reason because it creates a hostile work environment and impedes her function as an employee.

          If her job is related to handling anything related to Obama or Democrats' policies, and he refuses to work on it, then it would be a valid reason, too.

          If she is not an actual employee but self-employed and performs services for businesses as a consultant, it would be a valid reason to not hire her later.

          If she is actually an empl

    • by houghi (78078)

      I've quit a job in part because of the owner's political expressions, why should the other way around be any different.

      Because of the unbalance in power between an employer and an employee.

      An employer/employee relationship is not a relationship between equals. That means they should not be treated as equals by the law and one needs more protection.

  • "Free speech" protection protect the speech itself and affect ability of government to keep the speaker from distributing it. In itself, a record of clicking on a button in a privately run web site is not worthy of protection. Facebook distributing the summary of those record is protected, however Facebook is not the party being threatened or attacked. So no "free speech" issues are involved here.

    On the other hand, selective termination of employees who expressed their opinions and supported a competing ele

  • Getting a bunch of people to sign a petition or approve of a policy is pretty close to liking some random thing.

    I still don't understand why it's so hard to provide free anonymous speech.
    • by Alex Belits (437) *

      Getting a bunch of people to sign a petition or approve of a policy is pretty close to liking some random thing.

      But that's not speech by people who signed the petition, it's the speech by person who originated it. A petition posted with a bunch of fake signatures is still free speech (but it would be fraud to submit it).

  • It's just a matter of time before the US acts like the other dictatorships and jails people for liking something. Oh, you liked that? Off to Gitmo with you!

  • by Nephrite (82592) on Sunday April 29, 2012 @08:01AM (#39836861) Journal

    I think that free speech protection must have some limits. I don't think that my employee that openly supports my opponent will work well for me. And I think that an employee should have some basic loyalty to his employer. Critique is ok, but openly stating support for a competitor is not. And after all that employee wasn't "terminated" in Terminator sense.

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